Accuracy, nuance big casualties in latest War on Piracy salvo

A brief and largely useless piracy report from a company that makes its money …

Another day, another antipiracy study (or "study") from a self-interested party. What's new? This time, one of the named targets is fighting back, alleging "defamation" and reserving the right to sue the study's authors.

The study comes from MarkMonitor, a company in the business of selling its brand protection services to companies concerned about intellectual property theft and counterfeiting online. The study is tough to take seriously, since it really just amounts to assembling a list of 100 websites and then grabbing traffic data on them from Alexa.

Alexa gathers its information not from the sites themselves, but from a toolbar voluntarily installed by some users of Firefox, Chrome, and Internet Explorer. Despite Alexa's data normalization techniques, this approach can't generate anything like a random sample of Internet users; as the site admits, "the traffic data are based on the set of toolbars that use Alexa data, which may not be a representative sample of the global Internet population. To the extent that our sample of users differs from the set of all Internet users, our traffic estimates may over- or under-estimate the actual traffic to any particular site."

One of our own Web gurus says that, based on his own experience, Alexa traffic data is "really unusable" and doesn't track actual site numbers in useful ways.

Thus, the study reminds us of what we already know—lots of people like to pirate content online—but it says nothing interesting about numbers or usage patterns.

As if its reliance on Alexa data wasn't odd enough, the MarkMonitor report doesn't spend much time on nuance, either. For instance, the one-click download "cyberlocker" RapidShare is just tossed into the "digital piracy" category and then listed as the top such "pirate" website.

This is, quite frankly, bizarre—and not because RapidShare doesn't host plenty of user-uploaded infringing content (it does). But judges in the US and Europe have already said on multiple occasions that the site isn't breaking the law; a German court did so again a few days back. And RapidShare does take down infringing material when notified (as opposed to, say, The Pirate Bay).

MarkMonitor's only comment in the report is telling: "While some of these sites do offer takedown processes for pirated content, the action must be initiated by the content owner."

That's true, but it has nothing to do with a site being a "digital pirate" in any sort of legal sense. The Digital Millennium Copyright Act (DMCA) in the US, for instance, explicitly created just such a notice-and-takedown regime under which user-generated content sites do not have to be in the business of scouring uploads for infringement. (Some, like YouTube, later adopted limited scanning systems voluntarily, usually to prevent the uploading of large chunks of copyrighted works.)

"Read with incomprehension"

The MarkMonitor study—in reality, an eight-page document with lots of pictures—generated real anger from RapidShare today.

In a statement, the company said that it had "read with incomprehension the study of American enterprise brand protection company MarkMonitor which names RapidShare the world’s biggest online piracy platform. This defamation of RapidShare as a digital piracy site is absurd and we reserve the right to take legal action against MarkMonitor."

The company continued:

"Furthermore, in an interview with mediapost.com MarkMonitor’s vice president of communications Te Smith said that she did not consider websites like YouTube piracy sites as they "have procedures in place where brandowners can take down the material." RapidShare offers the exact same take down features to copyright owners as YouTube does. Now, where is the difference?

Of course, that does not mean that we are turning a blind eye to the fact that some people misuse our service to upload copyright-protected works to our servers. However, these users are in the absolute minority compared with those who use our services to pursue perfectly legitimate interests.

"A call to arms"

Still, despite the logical defects and shoddy methodology, the movie business called the MarkMonitor study "a call to arms for both government and the private sector… These websites and their operators are in our backyards; their lawlessness cannot be tolerated. We call on all concerned parties to redouble their efforts to address this scourge through vigorous law enforcement and robust inter-industry cooperation."

What sort of law enforcement? COICA, of course—last year's attempt to pass a US censorship and site seizure law (it will be back on the Congressional agenda soon). The Chamber of Commerce likewise wants some government action.

"Whether it is the sale of counterfeit bags and fake pharmaceuticals or illegal distribution of movies, music, and software, online IP theft is theft—plain and simple," said the Chamber's Steve Tepp. "The MarkMonitor report underscores the urgency of enacting proactive policies to enhance enforcement tools to shut down these rogue websites."

Indeed, that's what it was designed to do. As MarkMonitor says on its website, it was approached by the US Chamber of Commerce to develop "a fresh perspective on the scope of the problem." The result was the new report. Expect to hear its topline numbers spouted in piracy debates for years to come, no matter how worthless they truly are.